SINGH v Minister for Immigration

[2017] FCCA 1109

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1109

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) visa – the Tribunal complied with its statutory obligations – the applicant had a real and meaningful hearing – the Tribunal took into account the applicant’s circumstances in determining whether Public Interest Criteria 4020 should be waived – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 97, 476.

Migration Regulations 1994, cl.572.224 of Sch.2, 4020 of Sch.4.

Applicant: DAVINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1850 of 2016

Judgment of: Judge Street

Hearing date: 25 May 2017

Date of Last Submission: 25 May 2017

Delivered at: Sydney

Delivered on: 25 May 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms G Doyle
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1850 of 2016

DAVINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 23 June 2016 affirming a decision of the delegate not to grant the applicant a Student (Temporary) (Class TU) (Subclass 572) visa.

The delegate’s decision

1. On 23 September 2014, the Department wrote to the applicant inviting the applicant to comment on information to the effect that financial information provided by the applicant to the Department was not genuine. On 22 October 2014, the applicant responded to that invitation and asserted that there was a family dispute which explained the alleged bogus information. 

2. The delegate on 28 November 2014 found that the criteria for the grant of the vocational education and training sector student (Temporary) (Class TU) (Subclass 572) visa were not met by the applicant. The delegate identified the requirements for the grant of the visa and in particular set out cl.572.224(a) of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) and the Public Interest Criteria 4020.

3. The delegate found that the applicant had given a bogus document within the meaning of s.97 of the Act and found the information provided was false or misleading in a material particular. The delegate was not satisfied that the applicant met the Public Interest Criteria 4020(1). The delegate reviewed the claims and supporting material and was not satisfied that there were compelling circumstances to justify waiving the Public Interest Criteria 4020 in the granting of the visa.

The Tribunal’s decision

1. On 11 December 2014, the applicant applied for review. By letter dated 1 June 2016, the applicant was invited to attend a hearing on 23 June 2016. The applicant appeared on that date to give evidence and present arguments. The Tribunal identified the background to the application.  The Tribunal identified the requirements of the Public Interest Criteria 4020 in respect of the application.

Consideration of false or misleading information

1. The Tribunal identified the background to the matter, including the applicant’s submissions of 22 June 2016 prior to the hearing. The Tribunal set out the applicant’s explanation in relation to the financial documents provided to the Tribunal.

2. Based on the evidence before it, the Tribunal found that there is evidence that the applicant gave or caused to be given to the Department a bogus document as defined in s.97 of the Act and found that the information was false or misleading in a material particular in respect of the visa application which was the subject of this review. In those circumstances, the Tribunal found that the applicant did not meet the Public Interest Criteria 4020(1).

Consideration of the waiving of Public Interests Criteria 4020(1) or (2)

1. The Tribunal then turned to the issue of whether or not the Public Interest Criteria 4020 should be waived. The Tribunal referred to the applicant’s submissions and the applicant’s explanation. The Tribunal was not satisfied the applicant’s circumstances constitute compelling circumstances that affect the interests of Australia or that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, and Australian permanent resident or an eligible New Zealand citizen to justify granting the visa. The Tribunal was accordingly not satisfied the requirements of the Public Interest Criteria should be waived. 

2. The Tribunal found that the applicant did not satisfy the Public Interest Criteria 4020 for the purposes of cl.572.224 of Schedule 2 to the Regulations. It followed that the applicant does not meet the requirements for a Subclass 485 visa. The Tribunal affirmed the decision under review.

Before this Court

1. On 15 September 2016, a Registrar of this Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. 

2. The grounds in the application are as follows:-

   1. I applied for student visa however I was refused this visa as immigration believed I was not a genuine applicant for entry and stayed as a student. I declare that my sole purpose in Australia was to continue my studies and once I had completed them wishes to go home. I only wished to complete one last marketing course before I could go home and proceed with my career.

   2. I have the English language, financial capacity, educational qualifications and other requirements to meet the qualifications and other requirements to meet the characteristics of a full time student.

   3. My application was rejected due to a problem with evidence of funds, which I have now corrected. this problem was caused to due incorrect information given by my uncle to the department and a delay of information processing by my migration agent.

   4. I applied for AAT review and my application was not accepted. I provided the AAT with all the necessary information about the misfortune I had to deal with. I had great expectation from administrative appeals tribunal but AAT did not take my circumstances in to consideration and just refused my application.

   5. I believe the facts of my case and my situation were not fairly assessed by the AAT and that this has resulted in an unfavourable outcome for me. The unforeseen and unfortunate circumstances that resulted in me being in that position should have been considered correctly. If they were considered correctly I believe they would have met the requirements of compelling and compassionate circumstances under immigration law.

   6. I believe I was dealt with unfairly and I would like to lodge a judicial review application because I believe that the AAT did not follow all legislative requirements in finalising my decision.

3. At the commencement of the hearing, the Court explained to the applicant this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.  The Court explained that in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or whether the Tribunal’s decision was unfair. 

4. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed.  The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

Applicant’s submissions from the bar table

1. From the bar table, the applicant maintained that there was a family dispute that justified what occurred in relation to the records provided.  The applicant’s submissions from the bar table in substance invited this Court to engage in an impermissible merits review. This Court does not have power to review the merits of the matter. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness in the conduct of the review. 

Consideration

Grounds 1-4

1. Grounds 1 to 4 in substance repeat the nature of the applicant’s claims and evidence and do not identify any jurisdictional error.  The assertion in ground 4 that the Tribunal did not take his circumstances into consideration and just refused his application is inconsistent with the orthodox approach adopted by the Tribunal reflected in its reasons and the conduct of the hearing in the determination of the review.  Further, those reasons reflect the Tribunal taking into account the applicant’s circumstances and determining whether or not the criterion should be waived.  No jurisdictional error is made out by grounds 1 to 4. 

Ground 5

1. In relation to ground 5, that is in substance a repetition of the assertion that the Tribunal did not take his case and situation into account.  The adverse findings by the Tribunal were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. 

2. The applicant’s disagreement with the adverse findings does not identify any arguable jurisdictional error.  No jurisdictional error is made out by ground 5. 

Ground 6

1. In relation to ground 6, the Tribunal complied with its statutory obligations. On the material before the Court, the applicant had a real and meaningful hearing and an opportunity to present his evidence and submissions. The Tribunal on the face of its decision, complied with all the legislative requirements in the adverse decision in respect of the applicant and complied with the obligation of procedural fairness. No jurisdictional error is made out by ground 6. 

Conclusion

1. As the application fails to disclose any jurisdictional error, the application is dismissed. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 28 June 2017